CHALLAMANE HUCHHA GOWDA versus M.R. TIRUMALA AND ANR.

Citation: [2003] SUPP. 6 S.C.R. 506 · Decided: 08-12-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

" 
A 
CHALLAMANE HUCHHA GOWDA 
v. 
M.R. TIRUMALA AND ANR. 
DECEMBER 8, 2003 
B 
[S. RAJENDRA BABU AND RUMA PAL, JJ.] 
Code of Civil Procedure, 1908; Order 21 Rules 89 & 92: 
Execution of decree-Sale of scheduled properties ofjudgment debtor 
C by Court auction-Entire decretal amount with other cost paid by Judgment 
Debtor to Decree holder with objections against confirmation of sale--
Court directing judgment debtor to pay solatium as well to auction 
purchaser-Not accepted by auction purchaser who preferred an applica-
tion for confirmation of side-Execution Court treating objections filed by 
D the jl(,dgment debtor as a petition under relevant provisions of law and set 
aside the sale-Reversed by the First Appellate Court-Revision petition 
dismissed by High Court--On appeal, Held: Rule does not provide filing 
of application in ci particular form for setting aside sale-Deposit of 
decretal amount is sufficient compliance with provisions of /aw-Hence, 
E execution Court rightly set aside the sale of properties. 
The scheduled properties of the appellant-Judgment Debtor wc!re 
put up for auction by the executing Court in execution of a decree in 
favour o( respondent No. 2, the decree holder. In the meanwhile, the 
F Judgment Debtor paid entire decretal amount with cost to the Decree 
holder, he also filed a memorandum of objection against confirmation 
of sale by .of properties and prayed to close the execution proceedings. 
The Execution Court directed the Judgment Debtor to pay solatium 
to auction-purchaser. However, auction purchaser did not accept the 
sloatium amount but preferred an application under Order 21 Rult! 92 
G CPC for confirmation of sale. The Judgment Debtor, however, filed! an 
application to treat the memo of objection filed by him earlier as an 
application under Order 21 Rule 89 CPC and also filed another fresh 
application for setting aside the sale. The Execution Court observed 
that the entire decretal amount was paid by the Judgment Debtors and 
H sale was yet to be confirmed. Hence it set aside the sale. Auction 
506 
-
C.H. GOWDA v. M.R. TIRUMALA 
507 
,,. purchaser preferred an appeal which was allowed by the First Appel- A 
late Authority. Judgment Debtor preferred a Revision Petition which 
was dismissed by the High Court. Hence the present appeal. 
Allowing the appeal, the Court 
HELD : 1.1. Execution is the enforcement, by the process of the B 
Court of its orders and decrees. This is in furtherance of the inherent 
power of the Court to carry out its orders or decrees. Rule 89 of Order 
21 CPC, is the only means by which a Judgment Debtor can escape 
from a sale that has been validity carried out. Object of the rule is to 
provide a last opportunity to put an end to the dispute at the instance C 
of Judgment Debtor before the sale is confirmed by the Court and also 
to save his property from dispossession. The purpose of Order 21 is 
to ensure carrying out of the orders and decrees of the Court. Once 
the Judgment Debtor carried out the order or decree of the Court, the 
execution proceedings will correspondingly come to an end. The Rule D 
does not provide that the application in a particular form shall be filed 
to set aside the sale. Even a memo with prayer for setting aside sale 
is sufficient compliance with the said Rule. Therefore, upon the 
satisfaction of the compliance of conditions as provided under Rule 89, 
it is mandatory upon Court to set aside the sale under Rule 92 and the 
Court shall set aside the sale after giving notice under Rule 92(2) to E 
all affected persons. [512-A-B-C; D-E-FJ 
Raofi Baburao v. Bansilal, AIR (1919) Bombay 130; Venkatasubba 
Rao v. Narayana Rao, AIR (1922) Madras 83; Ram Auta v. Shea Piarey 
Lal, AIR (1925) Oudh 411; Pachiayae v. Vallimuthu, AIR (1925) Madras F 
639; Jyotish Chandra Skidar & Ors. v. Surendra Nath Das & Anr., AIR 
(1939) Calcutta 153; Mahaboob Khan v. Majid Husain, AIR (1939) 
Allahabad 241; Asan Kutti v. Koyaman Kutti, AIR (1937) Madras 342; 
Kishun Lal v. Hardevi Kaur, AIR 33 (1946) Oudh 45; Dr. Parmanand 
Verma v. Satnarain Prasad, AIR 39 (1952) Patna 99; Hirania v. Ram G 
Piari, AIR 37 (1950) Allahabad 367; Maruti Shidalappa v. Shivappa 
Mallappa, AIR (1967) Bombay 39 and Behari Lall v. G.K. Pathak, AIR 
(1972) Patna 347,
1 approved. 
1.2. The factum of the payment of entire decree amount to the 
Decree Holder with cost as not looked into by the First Appellate Court H 
508 
SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R

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